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2024 DIGILAW 1607 (ALL)

Ashok v. Kusum Devi

2024-07-04

KSHITIJ SHAILENDRA

body2024
JUDGMENT : KSHITIJ SHAILENDRA, J. 1. Supplementary affidavit filed today, is taken on record. 2. Heard Ms. Preete, learned counsel for the defendant-appellant and Sri Amit Saxena, learned counsel for the sole plaintiff-respondent and perused the record. 3. The instant second appeal is listed for admission under Order 41 Rule 11 CPC. 4. One Malkhan Singh executed a registered sale deed dated 22.10.1999 in favour of the plaintiff-respondent Smt. Kusum Devi. According to the case of the plaintiff-respondent, she was enjoying possession over the said property, however, the defendant-appellant was interfering in her possession and, consequently, Original Suit No. 375 of 2015 was instituted by her claiming a decree for permanent prohibitory injunction. She got an order of temporary injunction and, when on a particular date, the injunction order was not extended, taking advantage of the same, the defendant-appellant took forcible possession over the property and, consequently, plaint was amended claiming a decree for possession too. A counter claim was preferred by the defendant-appellant claiming a decree for injunction on the basis of his possession. The trial court decreed the original suit and dismissed the counter claim. Two civil appeals were filed against the said decree, both were consolidated by the appellate court and have been dismissed by a common judgment dated 01.02.2024. Two concurrent decrees, therefore, are under challenge in this appeal. Defendant has not challenged decree of dismissal of his counter claim. 5. The contention of the learned counsel for the defendant-appellant is that though title of plaintiff-respondent is admitted to the defendant-appellant at the strength of the sale deed executed by Malkhan Singh, the plaintiff, by entering into a “transaction of sale” with the appellant on 25.06.2001, delivered possession of the property to him in lieu of a sum of Rs.36,500/-. When asked, the learned counsel referred to a matter handwritten on the backside of the registered sale deed, appended at page 20 of the supplementary affidavit filed today. The entire defence in the suit as well as the basis of the counter claim is the said writing itself, whereas the entire claim and defence of the plaintiff is the registered sale deed executed by Malkhan Singh. The entire defence in the suit as well as the basis of the counter claim is the said writing itself, whereas the entire claim and defence of the plaintiff is the registered sale deed executed by Malkhan Singh. The matter written on the backside of the sale deed, needs reproduction as under: ^^vkt fnukad 25-6-2001 dks Jhefr dqlqe iRuh txnh'k fuoklh nsohiqj ÁFke ckyfefd uxj ftyk cqyUn'kgj dk IykV tks cSukes ij vafdr gS oks ewY; 36]500@& esa Jh v'kksd dqekj iq= Jh NTtk fuoklh vdcjiqj ij cqyUn'kgj dks cspk x;k ftlds vk/ks 18]250@& gksrs gS tks fd eSaus udn ÁkIr djds cSukek lqiqnZ dj fn;k vkSj fy[kdj rgjhj yxk fn;k tks oDr t:jr dke vk;sA fuŒvŒ dqlqe iRuh txnh'k gŒ viŒ 1- xokg & lqjs'k dqfypju 2- xokg & jk/ks';ke iq= jkepUæ flag** 6. Both the courts below have discarded the factum of entering into any agreement or transaction of sale between the parties. In so far as the language handwritten on the backside of the sale deed is concerned, it has been found to be not tenable in the eyes of law for following multiple reasons: (i) Factum of payment of Rs.36,500/- was not proved. (ii) Writing does not amount to a sale though it mentions that the property has been sold by the plaintiff Kusum to the defendant Ashok Kumar. (iii) Two witnesses of the said writing, namely, Suresh Kalicharan and Murari had not been produced as witness. (iv) Such writing, in absence of a valid registration, cannot confer any right upon the defendant-appellant. 7. Learned counsel for the appellant has vehemently argued that the said writing should have been read as evidence of the very agreement in terms of proviso to Section 49 of the Registration Act, 1908. The entire Section 49, as applicable in the State of U.P., reads as under: “49. Effect of non-registration of documents required to be registered - No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (Act No. 4 of 1882), or of any other law for the time being in force, to be registered shall: (a) affect any immovable property comprised therein. (b) confer any power or create any right or relationship. (b) confer any power or create any right or relationship. (c) be received as evidence of any transaction affecting such property or conferring such power, or creating such right or relationship, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (Act No. 4 of 1882), to be registered may be received or as evidence of any collateral transaction not required to be effected by registered instrument.” 8. The submission is that delivery of possession in lieu of Rs.36,500/-by the plaintiff to the defendant was a “collateral transaction” not required to be effected by any registered instrument and, therefore, the courts below have fallen into an error of law by emphasising upon the requirement of registration. She has also referred to definition of “contract” as provided under Section 2(e) of the Indian Contract Act, 1872, which reads as under: “2(e). Every promise and every set of promises, forming the consideration for each other, is an agreement” 9. Further submission is that the suit initially filed was for a decree for permanent prohibitory injunction, however, by amendment, its nature was completely changed and no issue was framed by the trial court and the appellate court on such change of nature. Learned counsel further submits that dismissal of counter claim on the ground of non-valuation is also an illegal exercise of power as the defendant was not granted any opportunity in this regard. 10. It is also contended that requirement of registration came into existence on 24.09.2001, whereas the agreement was executed on 25.06.2001 and, therefore, even unregistered document could be read in evidence. In support of her submission, learned counsel has placed reliance upon a judgment of the Supreme Court in the case of R. Hemlatha Vs. Kasthuri (Civil Appeal No. 2535 of 2023 and SLP (C) No. 14884 of 2022, decided on 10.04.2023) and has referred to paragraph no. 12 of the judgment, which reads as under: “12. In support of her submission, learned counsel has placed reliance upon a judgment of the Supreme Court in the case of R. Hemlatha Vs. Kasthuri (Civil Appeal No. 2535 of 2023 and SLP (C) No. 14884 of 2022, decided on 10.04.2023) and has referred to paragraph no. 12 of the judgment, which reads as under: “12. At this stage, it is required to be noted that the proviso to Section 49 came to inserted vide Act No. 21 of 1929 and thereafter, Section 17(1A) came to be inserted by Act No. 48 of 2001 with effect from 24.09.2001 by which the documents containing contracts to transfer or consideration any immovable property for the purpose of Section 53 of the Transfer of Properties Act is made compulsorily to be registered if they have been executed on or after 2001 and if such documents are not registered on or after such commencement, then there shall have no effect for the purposes of said Section 53A. So, the exception to the proviso to Section 49 is provided under Section 17(1A) of the Registration Act. Otherwise, the proviso to Section 49 with respect to the documents other than referred to in Section 17(1A) shall be applicable.” 11. Per contra, Sri Amit Saxena, learned counsel for the plaintiff-respondent submits that the matter written on the backside of the registered document has no sanctity and, even otherwise, when the plaintiff appeared in the witness box and original sale deed was shown to her, she denied her thumb impression on the writing terming the same as forged and also refused to identify the witnesses of the said writing. As regards the amendment, it is argued by him that once the amendment application was allowed and no challenge was made upto the appellate stage, such an argument cannot be accepted at the second appellate stage. 12. Having heard learned counsel for the parties, the Court finds that it is admitted on record that title in the property vested in plaintiff-respondent by virtue of registered sale deed dated 22.10.1999 executed by Malkhan Singh. There is no other sale deed conferring title upon the defendant-appellant. The entire case of the defendant is based upon the matter written on the back-side of the registered sale deed. There is no other sale deed conferring title upon the defendant-appellant. The entire case of the defendant is based upon the matter written on the back-side of the registered sale deed. There is no dispute about the fact that such writing was not made in the presence of Sub-Registrar or at the time when the registered sale deed was executed. This writing was made two years after the execution of the registered sale deed. The same cannot be treated to be a registered sale deed or even a registered agreement. The two witnesses of the said writing were also not produced before the courts for leading evidence. 13. In so far as provisions regarding sale are concerned, it is observed that in U.P., Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976, (Uttar Pradesh Act No. 57 of 1976) has been enforced, w.e.f. 1.1.1977. By virtue of Section 30 of this Act, Section 54 of Transfer of Property Act has been amended as follows: “30. Amendment of Section 54 of Act 4 of 1882 - In Section 54 of the Transfer of Property Act, 1882, hereinafter in this Chapter referred to as the principal Act: (a) In the second paragraph, the words “of the value of one hundred rupees and upwards” shall be omitted. (b) the third and fourth paragraphs shall be omitted. (c) after the last paragraph, the following paragraph shall be inserted, namely: “Such contract can be made only by a registered instrument.” 14. Similarly, by Section 32 of this Act, Section 17 of the Registration Act has been amended and Clause (f) has been inserted in it: 32. Amendment of Section 17 of Act 16 of 1908 - In Section 17 of the Registration Act, 1908, hereinafter in this Chapter referred to as the principal Act: (a) In Sub Section (1): (i) In clause (b) the words “of the value of one hundred rupees and upwards”, shall be omitted. (ii) In clause (e) the words “of the value of one hundred rupees and upwards”, shall be omitted. (iii) a fter clause (e), the following clause shall be inserted, namely: (f) any other instrument required by any law for the time being in force, to be registered.” 15. (ii) In clause (e) the words “of the value of one hundred rupees and upwards”, shall be omitted. (iii) a fter clause (e), the following clause shall be inserted, namely: (f) any other instrument required by any law for the time being in force, to be registered.” 15. By virtue of the aforesaid amendments w.e.f. 1.1.1977, an agreement to sell of the immovable property is a compulsorily registrable document in Uttar Pradesh and no un-registered agreement to sell can be executed nor it can be taken in evidence in view of Section 49 of the Registration Act. 16. The definition of “sale” as per Section 54 of Transfer of Property Act, 1882 reads as under: “54. “Sale” defined.— “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.—Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.” 17. It is, therefore, clear that transfer of any tangible immoveable property of the value of Rs.100/-and upwards can be made only by a registered instrument. 18. A perusal of the handwritten matter shows that it is termed as a “sale of immovable property” by plaintiff-respondent Kusum Devi in favour of defendant-appellant Ashok Kumar. Admittedly, it is not a registered instrument and, therefore, it cannot be treated as a sale deed. 19. 18. A perusal of the handwritten matter shows that it is termed as a “sale of immovable property” by plaintiff-respondent Kusum Devi in favour of defendant-appellant Ashok Kumar. Admittedly, it is not a registered instrument and, therefore, it cannot be treated as a sale deed. 19. In so far as the submission that the document does not require registration, this Court is not in a position to accept the same and proviso to Section 49, as applicable in the State of U.P., does not come for the rescue of the defendant-appellant as transfer of property and also delivery of possession cannot be treated as a collateral transaction not required to be effected by registered document. 20. The argument of the learned counsel for the appellant based upon the amendment made by Act No. 48 of 2001 in Registration Act with effect from 24.09.2001 does not impress the Court, inasmuch as, in the State of U.P., requirement of registration, even of a contract of sale is in force with effect from 01.01.1977. Irrespective of the same, the matter written on the backside can neither be treated to be a sale deed nor even an agreement as it does not satisfy the requirement of any of the two. 21. I have carefully examined the findings recorded by the courts below on the case of the parties as well as interpretation of the writing in dispute. Both the courts below have critically examined the oral and documentary evidence and each and every feature of the said writing has been discussed at length. Provisions of Section 53-A as argued by the defendant-appellant before both the courts below have also been rightly interpreted. This Court is of the considered opinion that title once vests in plaintiff-respondent has not been divested by any cogent and legal document and, therefore, the defendant-appellant cannot be treated as owner of the property and even if for some point of time he might have asserted possession over the same, the same being patently illegal, no relief can be granted to the appellant. 22. The appellant cannot get any benefit of judgment in case of R. Hemlatha (supra) inasmuch as the case before the Apex Court had arisen out of State of Tamilnadu where a different amendment was dealt with by the Apex Court. 22. The appellant cannot get any benefit of judgment in case of R. Hemlatha (supra) inasmuch as the case before the Apex Court had arisen out of State of Tamilnadu where a different amendment was dealt with by the Apex Court. The provisions applicable in the State of Uttar Pradesh as regards mandatory registration of an agreement were not dealt by the Apex Court nor was there any occasion for the same. Further, the matter before the Supreme Court had arisen out of a suit for specific performance of an agreement for sale and facts of the present case are totally different. The Court has already held that the writing relied upon by the appellant though termed as “sale” does not satisfy the parameters even of an agreement and, therefore, the entire case of the defendant-appellant has no basis at all. 23. No substantial question of law arises for consideration in this appeal and summoning of lower court record for further consideration is not required as sufficient material is already appended along with memo of appeal and the supplementary affidavit filed today. 24. The instant second appeal has no force and is, accordingly, dismissed.